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Contracts

Q: Breach of contract by act

Our working men's club hired a local comic for two of our recent functions. He appeared at the first but on the day of the second date his agent phoned to say the performer was too ill to go on. Yet this artist went on to complete another booking on the next night which involved a 200 mile round trip. Can we take action for breach of contract?

A: The first thing to do is to ask for a medical certificate and an explanation, preferably in writing. It is just possible that there could be a reasonable medical explanation for the performer to have recovered the morning after his cancelled engagement with you, for example, in the case of a mild bout of food poisoning.

It is also possible that the other engagement was pre-booked before yours, with the comic reasonably expecting to be able to do both. If you fail to get a medical certificate in an acceptable form or an explanation which satisfies you or if there are other circumstances which you regard as suspicious then, yes, you may have a good cause of action for breach of contract. But whether or not you would succeed depends on whether you can obtain persuasive evidence that you have been deceived and that it was just an excuse to enable the performer to accept another more lucrative or otherwise preferred engagement elsewhere, in which case it would certainly be a breach of contract on his part.

Assuming you get that far, the next question to consider is what damage your club has sustained. It would have a duty to mitigate its loss by hiring a suitable and comparable replacement at a reasonable charge. To take an extreme example, you could not expect to hire an international star to replace a local comic and charge the difference as damages for breach of contract. On the other hand, if you reasonably have to pay more for hiring a reasonable replacement at short notice then you can recover the difference from the original performer who was in breach of contract. If you get a suitable replacement at no additional charge then the club will have suffered no loss, so any damages for breach of contract would be purely nominal and not worth pursuing.

If no suitable replacement could be obtained within the time available so that the performance had to be cancelled or alternatively if the best reasonable replacement was perceived as not being as good as the original was likely to have been, I do not think that a claim for loss of enjoyment would stand up to close legal analysis. Such claims are possible in certain circumstances, for example, holidays not coming up to scratch, but I do not think such circumstances would apply here, particularly when the club as such (as distinct from individual members) would not have suffered any loss of enjoyment and it would hardly be worthwhile for individual members to sue on a speculative basis.

On a purely practical level, if the club has not yet paid the comic for-his first appearance you could consider withholding payment in whole or in part for his non-appearance on the second date, particularly in respect of any excess cost of a reasonable replacement. It should be possible to negotiate a 'deal' of some kind with the agent concerned, particularly as, if the circumstances are questionable, he would not want his reputation to suffer, and he might want your club to make other bookings with him in future. As to the future, you might care to look into the question of getting insurance cover, the cost of which I suspect may be quite modest.

First published July 1994